The hoary old chestnut was addressed in an interesting
way on 22 May, our first meeting at the Reigate Manor Hotel.
Michael Reynolds and Peter Solari spoke for the motion
and Dr Julian Critchlow and Harvey Mason spoke against. The debate was
elegantly chaired by Roderick O'Driscoll. An open discussion was followed by
summing up from both parties.
Before the debate started, a vote was taken, only one
in favour of the motion.
The major points made by Michael ―Reynolds were:
·
Without the courts there is no continuity in law.
·
Arbitration cannot survive without the courts.
·
The pre-action protocol in CPR is designed to resolve
disputes, where possible, without recourse to litigation.
·
If you want a judicial decision you need a
professional judge.
·
In arbitration, there is no proper control of
costs - lawyers control costs, and arbitrators do not
have control of lawyers, where the High Court judge has.
·
Parties are better off with a judicial decision based
on common law rather than a commercial decision.
·
As litigation is public, the judge is on trial as well
- arbitration is in private.
·
Judges have regard to public interest.
·
If arbitration were a more effective process, then
arbitration would have a more legalistic approach to reporting.
·
To get at the truth you need the judicial process.
Julian Critchlow responded under four main heads
1.
In arbitration you can select an appropriate arbitrator.
Every day in courts judges decide technical cases of which they have no
knowledge. A TCC judge may be more experienced in technical matters generally,
but is unlikely to be an authority on the matter in dispute.
2.
Arbitrator makes award on matters submitted. The big
advantage of arbitration is the ability to select the arbitrator. Professonals
perform mystic operations of tasting, touching and handling.
3.
Ability of parties to control proceedings. In the
right case there is speed of decision. The arbitrator can set a date for
hearing in (say) three months time. Parties can agree procedures irrespective
of wishes of the arbitrator - this cannot be done with a judge.
4.
Resolution of International disputes. Further
advantages of arbitration are that it takes place in private, there is a
limited right of appeal and it can be quicker and cheaper than litigation.
Peter Solari continued (for the motion)
·
There is no problem with the advantage of 'look-sniff'
arbitrations.
·
Arbitration should be consensual. In the domestic
construction arbitration field no way is it consensual. The arbitration clause
is imposed by the Employer -Contractor and Subcontractor must follow.
·
Example of a carpenter subcontractor who now cannot
continue to trade. He has to arbitrate, puts forward the name of an arbitrator
which is rejected and then takes pot luck by an appointing body. The
subcontractor has no money - he could be entitled to legal aid, the absence of
which is a serious disadvantage in arbitration. The arbitrator asks for
security for costs. The Respondent asks for security for costs. There is an
enormous amount of paperwork and witnesses of law and fact
·
Article 6 of the Human Rights Act gives
a right to a public hearing.
·
A High Court judge has all the powers needed.
·
How can an arbitrator be more capable than a judge?
·
There is the cost of the arbitrator and the venue, no
charges for litigation.
·
Under the Arbitration Act, the arbitrator has to
decide in accordance with the law.
·
If it
is to be decided by other than the law, then arbitration may be preferable, but this will not be agreed by the
lawyers.
·
The arbitrator's decision is final - no appeal - is
this a good thing?
·
Now there is no question of judges not having power to
look behind certificates.
Harvey Mason (against the motion)
·
Example of litigation: Time taken to get the show on
the road - only two dates available for a long hearing - you can easily lose a
year.
·
Example of arbitration: Dispute can be broken down
into many components -arbitrator would come out to examine - flexibility -
short time scale needed to respond.
·
Accept that the TCC judges are better at technical
stuff but have to be shown in simple terms.
·
There is criticism of the roughness of arbitration,
but experience has shown that everything is rough justice to some extent.
·
You have to have a barrister and instructing solicitor
in court.
·
For purely technical points lawyers can be a
disadvantage.
·
There is no cost advantage in litigation.
·
Arbitration
can be adapted in form and timing - why not by interviews after working hours?
·
Arbitration pre-dates dispute resolution by the state
- historically arbitration existed without litigation.
·
Consider international disputes between parties in
different countries - this is where arbitration is strongest.
·
In the property field - both have important role -
arbitration is preferable, law is the last resort - arbitration can be far
quicker and far cheaper.
·
But-
·
Recent survey shows arbitration completely fallen out
of favour.
·
Now there are no longer excessive delays in court.
·
Parties are committed to arbitration possibly years
before the dispute - there is no choice once the dispute is identified.
·
Lack of 3rd party procedure - arbitration does not
really have solution - resolved in two different forums.
·
The disadvantage in arbitration is that procedures are
there but are not used. If judges can be used as arbitrators, is this the
answer?
After the main speakers had summed up, the vote at the
end was 4 for the motion and 13 against (abstentions not counted). Both
advocates could claim a victory - 'for the motion' having converted 3, but the
overall vote being against.
Reporter's Note: On reviewing the discussion, I note
that no mention was made of arbitrators who have had a depth of legal training,
eliminating some of the factors against arbitration.
Reported by Peter Horne